Personal Liberty Cannot Be Placed Over National Security: Allahabad High Court Denies Bail To Man Accused Of Harbouring ISI Agent
The Court said that the provision under Section 437(6) CrPC is not mandatory and does not confer indefeasible or unfettered right of bail; directed expeditious completion of trial.
The Allahabad High Court has refused bail to a man, Mohd. Ashfaque Ansari alias Ashfaque Ansari accused of harbouring an alleged Pakistani ISI agent who, according to the prosecution, collected confidential information relating to the Indian Army and Indian Air Force and transmitted it abroad. The Court also directed the trial court to conclude the proceedings within six months.
Noting that the applicant, who has been in custody since November 27, 2015, was not entitled to bail despite invoking Section 437(6) CrPC on the ground of delay in trial. The Court observed that the provision does not create an absolute or indefeasible right to bail and permits the Magistrate to refuse bail by recording reasons.
Bench of Justice Ashutosh Srivastava, while dismissing the bail application, observed, “The provisions contained in Section 437(6) of the Cr.P.C. are not mandatory. the legislature while enacting Section 437(60 of Cr.P.C. has not given an absolute, indefeasible or unfettered right of bail. But the right of bail is given with a rider investing the magistrate with discretion to refuse bail by recording reasons therefor. The right of an accused for a speedy trial, though, constitutional and aimed at liberty of the accused, is not put on that high a pedestal that it becomes absolute”.
“In the case at hand, the applicant has been charged of assisting an ISI Agent in collecting confidential and sensitive information regarding the Armed Forces of India, which can undermine the national security of India. In such circumstances the Court is of the opinion that the personal liberty of the applicant cannot be placed over and above the security of the nation...”, the Bench further noted.
Advocate Zain Abbas appeared for the applicant and Paritosh Malviya, AGA appeared for the opposite party.
According to the prosecution, the applicant allegedly harboured co-accused Mohd. Ezaz @ Mohd. Kalam, stated to be a Pakistani national and ISI agent, at his residence for nearly 20 months. During this period, the co-accused allegedly learnt Hindi, photography and video editing, while confidential information relating to the Indian Army and Indian Air Force was allegedly transmitted through emails to Pakistan and Bangladesh.
The applicant has been charge-sheeted under Sections 120-B, 212, 467, 468 and 471 IPC after investigation.
Seeking bail, the applicant contended that although the charge-sheet was filed in December 2021 and charges were framed in August 2024, none of the 31 prosecution witnesses had been examined.
He argued that the prolonged delay entitled him to bail under Section 437(6) CrPC and relied on recent Supreme Court decisions emphasising the right to a speedy trial under Article 21 of the Constitution of India.
Opposing the plea, the State, however, argued that the allegations involved national security and that releasing the applicant on bail could prejudice the prosecution, as there was a possibility of absconding, influencing witnesses or tampering with evidence.
Referring to the Supreme Court's decision in Subhelal @ Sushil Saku v. State of Chhattisgarh Crl. Appeal No. 818 of 2025 (arising out of SLP (Crl.) No. 1314 of 2025), the Court held that Section 437(6) CrPC is discretionary and does not confer an automatic right to bail merely because the trial has not concluded within the prescribed period.
Cause Title: Mohd. Ashfaque Ansari Alias Ashfaque Ansari v. State of U.P. (Neutral Citation: 2026:AHC:129123)
Appearances:
Applicant: Zain Abbas, Advocate.
Opposite Party: Paritosh Malviya, AGA.